DOCTRINE OF NECESSITY

DOCTRINE OF NECESSITY In 1954, Governor-General Ghulam Muhammad dissolved the first constituent assembly Maulvi Tamizuddin, the assembly president, challenged the constitutionality of the governor-general’s action in the Supreme Court, under the Independence Act of India In its judgment, the court upheld the governor-general’s dismissal order on the basis of what it called the “doctrine of necessity” According to the doctrine, certain actions by politically powerful individuals created situations to which legal remedy could not be meaningfully applied The court argued that it was operating under considerable constraint and had only a limited degree of real freedom available to it The chief justice felt that declaring the action by the governor-general to be constitutionally invalid would have created political chaos The justices believed that the only viable course they could adopt was not to nullify the governor-general’s act but to force him to return to the constitutional path Accordingly, the court ordered Ghulam Muhammad to reconstitute the Constituent Assembly This decision suited the governor-general, as it provided him the opportunity to rid the assembly of the representatives who had refused to follow his dictate The “Tamizuddin case,” built on the doctrine of necessity, was to significantly influence Pakistan’s constitutional and political development

The doctrine was to be applied several times subsequently by the courts to validate military coups d’etat and other unconstitutional acts by a string of authoritarian leaders It also weakened the development of an independent judiciary in the country It was only in the 1990s that the judiciary began to take a course that was not totally subservient to the wishes of the executive However, in 2002 the Supreme Court once again relied on the Doctrine of Necessity to provide legal cover to the assumption of political power by General Pervez Musharraf Also, in keeping with the legal tradition, it put a limit on the exercise of power by the new military order Musharraf was ordered to hold general elections within three years, and while he could amend the constitution, its basic character-parliamentary democracy-could not be changed